spectively amended their claims by adding the following: "Claimant says that the bill filed in this suit, and all the subsequent proceedings therein, have been simulated, collusive, and fraudulent, and intended to cheat, hinder, and delay this claimant, and others in like cases, in the collection of their just debts, one of which is evidenced by said judgment in favor of claimant; wherefore he prays that his said claim be paid out of said fund in preference to all unsecured debts against said defendant." The court thereupon overruled the motion to strike out the claims of Sanford and others. The cause was then referred to the master to report upon the charges of fraud and collusion made in the amended claims. By subsequent order, the master was directed to show by his report the total amount of money which came to the hands of the receiver; the amount expended by him in new construction and improvement of the road; the operating expenses of the road while in his hands; the amount paid out by him in costs and attorney's fees in this suit, to whom paid, and for what services; and the total amount of money with which the receiver should be charged in a final settlement of his accounts. On the 23d of February, 1884, Dow and Matthews, trustees in the mortgage of May 1, 1877, filed their claim and petition of intervention, they having previously brought suit to foreclose. In that petition they prayed that the moneys in the hands of the receiver be applied in the discharge of bonds secured by such mortgage. April 15, 1884, Dow, Matthews, and Moran, trustees in the mortgage of May 2, 1877, (the latter being successor of Pierson,) filed their claim of intervention, praying that, if the fund in court was not paid out on the claim and intervention theretofore filed by Dow and Matthews, it be paid in discharge of overdue interest on the bonds secured by the latter mortgage.

On the 22d of May, 1884, the master made a report, embodying, among others, the following findings: (1) That the total amount which came to the hands of the receiver during his term of office was $1,675,919.73; (2) that the amount expended during his administration for new construction was $310,992.92, not including certain sums expended for bridge repairs, cross-ties, repairs to locomotives, and maintenance of cars; (3) that the amount chargeable to the receiver on final settlement of his accounts was $218,998.98, which he had deposited as required by the court, and that he was thereby fully acquitted; (4) that the suit instituted by Sage was collusive, in that it was brought with the connivance of the railroad company, for the purpose of shielding it, by means of a receivership, against suits by the company's creditors; (5) that during the receivership the railroad was largely improved by the receiver out of the income of the property, and that the receiver was honest, competent and faithful; (6) that Dow, one of the trustees in both the preference and general mortgages of the company, was the managing trustee, having, or seeming to have, the chief direction of all litigation involving either the trustees or the holders of bonds secured by the general mortgage; (7) that the intervenors were holders of bonds secured by the general mortgage, and that at no time during the continuance of the receivership did the trustees, as trustees of either mortgage, seek to intervene in the cause, or to take any action in regard to the property, or to cause its restoration to the defendant company, or to take any steps to put an end to the receivership; (8) that before the failure of the company to pay any installment of interest, Dow stated and threatened that, in case any default in the payment of such interest occurred, the bondholders would not take any steps to foreclose the mortgage, but would bring as many separate suits at law in the United States circuit court as could be separately brought upon coupons taken from the bonds secured by the mortgages every six months. Exceptions by Sage and the company to the master's report having been overruled, it was adjudged that the money in the registry of the court be paid to Robert K. Dow and Watson Matthews, surviving trustees in what is called the "Preference Mortgage of May 1, 1877," for distribution by them among the beneficiaries under that mortgage, and that plaintiff pay all the

costs of this suit. From that decree Sage and the railroad company have separately appealed. No appeal was prosecuted by bondholders having judgments at law, and who, by the decree, were placed upon an equality with other bondholders, secured by the same mortgage, who had not obtained judgments for the amount of their unpaid coupons.

Wager Swayne, for Sage and Memphis & Little Rock Railroad Company. U. M. Rose, for Dow et al.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

We do not understand upon what principle the court below held that the trustees in the mortgage of May 1, 1877, were entitled, as against both the mortgagor company and Sage, to claim the net earnings of the road during the receivership. The latter was a judgment creditor of the company, and it was at his instance, in a suit commenced by him, that its property was put in the hands of a receiver. This was done because, in the opinion of the court, the appointment of a receiver was necessary "to protect plaintiff's interests and rights." If the grounds set forth in the bill were not sufficient to justify the appointment of a receiver, they were ample to give a court of equity jurisdiction to do so. In Trust Co. v. Railway Co., 117 U. S. 434, 458, 6 Sup. Ct. Rep. 809, the court said: "The co-plaintiffs with Hervey were judgment creditors of the Paris & Decatur Company, with executions returned unsatisfied. The bill set out the precarious condition of all the property held and used by the Illinois Midland Company, and the necessity for a receiver, in the interest of all the creditors of all four of the corporations, to prevent the levy of executions on such property; and it prayed for a judicial ascertainment and marshaling of all the debts of all the corporations, and their payment and adjustment, as the respective rights and interests of the creditors might appear, and for general relief. The plaintiffs set forth that they represented a majority of the stock in all the corporations. This bill was quite sufficient to enable a court of equity to administer the property and marshal the debts, including those due the mortgage bondholders, making proper parties before adjudging the merits." In the present case, it is true, Sage did not sue out execution upon his judgment, and have a return of nulla bona; but that point has become immaterial. The railroad company made no such objection at the time the receiver was appointed. Besides, suing out an execution would, according to the facts and the admission of the parties, have been an idle ceremony, causing useless expense, and bringing no real benefit to the plaintiff. It is true, also, that Sage did not sue in behalf of all the creditors of the company, or of such as might come in and contribute to the expense of the litigation. He was not bound to pursue that course. It was his privilege, under the law, to sue for his own benefit; and it was within the power of the court, for his protection as a judgment creditor, to place the property of the debtor company in the hands of a receiver, for administration under its orders. We do not mean to say that a single judgment creditor, or any number of such creditors, of a railroad company are entitled, as matter of right, to have its property put in the hands of a receiver, merely because of its failure or refusal to pay its debts. Whether a receiver shall be appointed is always a matter of discretion, to be exercised sparingly and with great caution in the case of quasi public corporations operating a public highway, and always with reference to the special circumstances of each case as it arises. All that we say in this connection is that, under the circumstances presented in this case, the appointment of the receiver was within the power of the court. The order appointing him, and directing him to operate and manage the property, was not a nullity.

But it is contended that the suit instituted by Sage was collusive, and an imposition upon the court; that, as held by the circuit judge, when the re

ceiver was discharged, after having served 17 months, and the property was turned over to the company, the process of the court was not used "in good faith to collect complainant's judgment, but as a means of placing the property and business of a railroad company in the hands of the court, to be managed through a receiver, to the end that the defendant may not be subject to suits in the ordinary course of judicial proceedings, and in order to enable the plaintiff and defendant, by agreement between them, through the receiver, to apply all the earnings of the road during a series of years to the improvement and betterment of the property;" and that, consequently, the proceeding was not, in fact, an adversary one. 5 McCrary, 643, 18 Fed. Rep. 571, 573. Whether this characterization of that proceeding be just or not, it is not necessary in the present case, and, in the view we take of it, to determine. For, if it be just, the court below applied the proper remedy for the abuse of its process; that is, it discharged the receiver, and turned the property back to the possession and control of the company, which, in the view taken of the facts by the circuit judge, ought never to have been disturbed. And the court proceeded, as was its duty, to dispose of the net earnings of the property, while under the management of its officer, acting under its directions.

But did the imposition, if any, practiced upon the court, inducing it to appoint a receiver when one would not have been appointed had it been aware of the exact situation, add anything to the legal or equitable rights of the trustees in the mortgage executed by the railroad company? Had the receiver never been appointed, and had the railroad company operated the property just as the receiver did, producing the same amount of net earnings that were in the hands of the receiver, at the time of his discharge, would the trustees in the mortgage of May 1, 1877, have been entitled to demand that such earnings be paid over to them? Clearly not. "It is well settled," this court said in Dow v. Railroad Co., 124 U. S. 652, 654, ante, 673, "that the mortgagor of a railroad, even though the mortgage covers income, cannot be required to account to the mortgagee for earnings, while the property remains in his possession, until a demand has been made on him therefor, or for a surrender of the possession under the provisions of the mortgage. That is the effect of what was decided by this court in Railroad v. Cowdrey, 11 Wall. 459, 483." See also Gilman v. Telegraph Co., 91 U. S. 603; Bridge Co. v. Heidelbach, 94 U. S. 798; Kountze v. Hotel Co., 107 U. S. 692, 2 Sup. Ct. Rep. 911; Teal v. Walker, 111 U. S. 242, 4 Sup. Ct. Rep. 420. The trustees filed their bill of foreclosure June 26, 1883, but they did not intervene as trustees in this suit until February 23, 1884, some time after the discharge of the receiver, and after the property had been surrendered to the company. Their claim and intervention shows upon its face that no part of the interest accruing upon the bonds secured by their mortgage subsequent to January 1, 1882, had been paid at the time they so intervened. By the terms of that mortgage, it was provided that, in case of continuous default by the railroad company for 30 days after maturity in paying any of the sums specified in the interest coupons, the principal sums in all the bonds "shall immediately become due and payable;" and thereupon the trustees, upon the written request of the holders of a majority of said bonds, "shall enter upon and take possession of all and singular, the charter, franchises, and property hereby conveyed, and shall and may sell the same to the highest bidder for cash in hand," etc. There was no moment pending the receivership when these trustees, upon the request of the holders of a majority of the bonds, might not have appeared in this suit, or in a separate suit in the same court, and asked that the receiver hold for them as well as Sage, or that he be discharged, and they put in possession of the mortgaged property, for the purposes of sale, pursuant to the mortgage. Neither they nor the bondholders elected to pursue that course. It may be that their action was dictated in part by the fact, found by the master, that the railroad, the principal security for their debts, was being largely improved

during the receivership out of the income of the property, and that no part of that income was being diverted to pay Sage's judgment or the debts of the company. If the trustees, pending the receivership, had intervened, and asked possession of the property, they might perhaps have been entitled, as against general creditors, to the income of the property thereafter accruing, upon the principles announced by this court in Dow v. Railroad Co., 124 U. S. 652, ante, 673. But we do not perceive any legal ground upon which they are entitled to the net earnings of the property, while it was in the hands of the receiver, in a suit instituted by a judginent creditor for the protection of his own interests, and not of the interests of the trustees, or of the bondholders, or of other creditors. His suit was, in effect, an equitable levy for his benefit, upon the net income of the property. Other creditors who filed their claims, based upon judgments, gain nothing, as between themselves and Sage, by the fact that their judgments were rendered upon coupons, which were secured by lien upon the mortgaged property. Neither they nor their trustees, prior to the termination of the receivership, chose to assert this lien. Nor did they, pending the receivership, ask that the receiver should, from and after their appearance, hold for them as well as for Sage. They took action as simple contract creditors, whose claims were reduced to judgment. If the bondholders, when intervening simply as judgment creditors, acquired an interest in the fund, they could not, upon any recognized principles of equity, deprive the creditor, at whose instance and for whose benefit the receiver was appointed, of his priority of right, arising from the institution of suit for the purpose of reaching the income of the debtor's property. The judgments at law obtained by bondholders upon their coupons were all rendered after the receiver took possession of the property, some in the spring of 1883; the larger part of them in October and November of that year, just before the receiver was discharged. These couclusions are not affected by the fact that Sage, in his bill, alleges that he seeks relief, subject to all the rights and equities of the holders of bonds and of their trustees. It was only meant by this to give assurance that he had no purpose, in asking the relief he did, to affect injuriously their security, or the liens created in their behalf by the mortgages referred to. Taking the allegations of his bill to be true, he sought only, by means of a receivership, to reach the net income of the railroad company in satisfaction of his debt.

But it was insisted, in argument, that the judgment which Sage obtained against the railroad company was fraudulent, in that the debt for which it was rendered was fictitious; that he never in fact owned a real note executed by that company, based upon any valuable consideration whatever. The record not containing the note, or a copy of it, some question was also made, in argument, if we did not misunderstand counsel, whether any such note was ever in existence. We could not sustain these propositions without reaching the conclusion that there had been the most shocking perjury upon the part of witnesses in this cause, a conclusion which the evidence does not warrant. The judgment which Sage obtained by confession of the defendant company, in the circuit court of the United States, recites that it appeared to the court, "as well from the promissory notes with the complaint filed as from the said confession and consent, that the defendant is indebted to the plaintiff in the sum aforesaid," etc. The record shows that Sage, under date of June 20, 1882, addressed to the president of the Missouri Pacific Railway Company a communication, offering to give 50 cents on the dollar, payable in 90 days, for its debt and note "against the Memphis & Little Rock Railroad Company, (as reorganized,) amounting, as I am informed, to the sum of $115,479.03, your company guarantying that the said amount is justly due to it from the Memphis & Little Rock R. R. Co." The records of the former company recite that on motion of Mr. Dillon, seconded by Mr. Eckert, that offer was accepted, and that said debt and note "are hereby transferred and assigned to said Sage; and

that the president be, and he is hereby, authorized to execute any further assignment of said debt that counsel may advise, and also to indorse and deliver said note to the said Sage." Sage swears in his deposition that he purchased, held, and brought suit upon said note. The treasurer of the Missouri Pacific Railway Company testifies that his company did in June, 1882, hold the note of the Memphis & Little Rock Company (as reorganized) for $115,479.03, given by the latter company for advances made by the Missouri Pacific Railway Company to meet coupons of the former company. It is true that, independently of the evidence furnished by the note, it does not clearly appear that the advances made by the Missouri Pacific Railway Company to the other company aggregated the full amount of the note. But this deficiency in the proof is more than made good by the fact that the note was given, and that the Memphis & Little Rock Railroad Company (as reorganized) confessed judgment for its amount, and does not now dispute the debt; although, by its appeal, it claims that the fund in court should be paid to it rather than applied to Sage's judgment. It is contended that Sage does not show that he has ever paid to the Missouri Pacific Railway Company the amount he agreed to give for the note of the Memphis & Little Rock Railroad Company, (as reorganized.) Proof of that fact was not vital in the case. After the acceptance of his offer to purchase the note, and after it had been transferred by indorsement to him, he came under a legal obligation, which he recognizes, to pay what he agreed to pay. He cannot escape that obligation.

For the reasons stated we are of opinion that the decree below was erroneous, in that it did not, in the order directing the distribution of the fund remaining in court, give a preference to the judgment at law obtained by the appellant Sage. The decree reversed, and cause remanded, with directions for further proceedings consistent with this opinion.

TILGHMAN v. PROCTOR et al.

PROCTOR et al. v. TILGHMAN.
(March 19, 1888.)

1. PATENTS FOR INVENTION-DAMAGES FOR INFRINGEMENT-ESTABLISHED LICENSE FEES. Upon a bill in equity by the owner against infringers of letters patent for a process, the plaintiff is entitled to recover the amount of gains and profits that the defendants have made by the use of his process, although the plaintiff had established license fees for the use of his patent.

2. SAME-INTEREST OF THIRD PARTY IN PROFITS OF PATENT.

The mere fact that another than plaintiff has an interest in the license fees and recoveries under the patent sued on, does not amount to such legal ownership in the patent as will defeat the plaintiff's recovery of all the gains and profits that the defendants have made by the infringement of the patent.

3. SAME

EFFECT OF ERRONEOUS DECISION AGAINST PATENTEE.

An erroneous decision against a patentee in a suit against one infringer is no ground for not holding other infringers to account to the patentee in another suit for all the profits, gains, and savings which defendants have made from the use of his invention during the whole period of this infringement, including the time prior to the reversal of such decision.

4. SAME-ALLOWANCE FOR LOSS BY USE OF PATENTED PROCESS.

Where the difference in the proportion of fatty acids used in the patented process and the old process, which the infringers might have used, does not affect the commercial value of the product, nothing should be deducted for a loss of fatty acids by the patented process, in computing the gains and profits made by the infringers of this process.

5. SAME-INTEREST ON PROFITS.

The profits allowed in equity for the injury a patentee has sustained by the infringement of his process cannot bear interest, except from the time the master's report is submitted showing the amount due.

WAITE, C. J., dissenting.

Appeals from the Circuit Court of the United States for the Southern District of Ohio.